About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

37 Ky. L.J. 313 (1948-1949)
Provocation--Assault and Battery as Sufficient Provocation to Reduce an Intentional Homicide to Manslaughter

handle is hein.journals/kentlj37 and id is 315 raw text is: PROVOCATION-ASSAULT AND BATTERY AS SUFFICIENT PROVOCATION TO REDUCE AN INTENTIONAL HOMICIDE TO MANSLAUGHTER No rule of law is more widely accepted and quoted in the crim- inal field than that an intentional killing resulting from heat of pas- sion aroused in the killer by adequate legal provocation will be re- duced to voluntary manslaughter.' The rule, founded upon the theory long entertained in the law, that there are certain provoca- tions which arouse in man such rage or passion as to render him incapable of cool reflection2 has been recognized since, and per- haps even before, the decision in the leading case of Regna v. Maw- grzdge2 One such provocation, recognized equally as long as the doc- trine itself, is an assault and battery by the deceased upon the slayer.' Yet, despite long acceptance and frequent recitation, it ap- pears that in many instances the patently simple rule that an as- sault and battery will be considered adequate provocation is quite different in its application from what would be expected. It has been held, for example, in one jurisdiction, that a jury was justified in finding that a kick by the deceased upon the person of the defendant did not constitute adequate provocation to reduce the offense to manslaughter;' while in another it has been found that abusive language followed by a wild shot, constituting no battery whatso- ever, may be sufficient.' Obviously, such divergence of view results in uncertainty and confusion in the law, as does any conflicting construction of a given rule of law. It is the purpose of this note to examine the degrees of violence said by various jurisdictions to constitute the legal provocation of assault and battery and to suggest the requirement which would appear best to serve society today. In order clearly to comprehend the import of the language employed by the courts it is thought that a word concerning defi- nition might prove helpful. Much confusion of the rule is need- lessly caused by the loose manner in which many courts have used assault as synonymous with assault and battery. Clearly the two are not synonymous and, being technical phrases, should be employed separately. For purposes of this note, the common defi- nitions are to be observed; thus an assault is considered an unlaw- ful offer or attempt, coupled with an apparent present ability, to McKaskle v. State, 96 Tex. Crim. Rep. 638, 260 S.W 588 (1924), Hannah v Commonwealth, 153 Va. 863, 149 S.E. 419 (1929) See People v Ryczek, 224 Mich. 106, 194 N.W 609, 611 (1923) -Holcomb v State, 103 Tex. Crim. Rep. 352, 281 S.W 202 (1926). 2Kel. J. 119, 84 Eng. Rep. 1107 (1707) 'Id. at 135, 84 Eng. Rep. at 1114. 'United States v Edmonds, 63 F Supp. 968 (1946). 'Roberson v. State, 217 Ala. 696, 117 So. 412 (1928).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most